Cases involving discrimination against candidates for employment in protected classes have existed since the Civil Rights Act of 1964 was enacted. Some state laws have additional protections not included in the federal laws. For instance, a handful of states provide some protection for job applicants with criminal histories. The plethora of information found in an individual’s social-media accounts creates a new and unexpected twist on these protective laws, although the analysis for litigation remains the traditional analysis. That is, factual discrimination due to a person’s membership in a protected class or union membership is actionable, and facially neutral employment practices with a disparate impact create a cause of action.
Aside from yielding information regarding an individual’s membership in a protected class, however, an online networking page may yield information that would be helpful for an employer, such as community involvement, awards, publications, interests, and connectedness with the professional community of the prospective employee’s industry. However, a profile may also show harassing comments or discriminatory comments. Should an employer see these comments and hire the candidate anyway, the employer could be liable for negligent hiring after the employee harasses another employee or customer down the road. Employers who did not properly screen employees at all have long been held liable for negligent hiring. See, e.g., White v. Consol. Planning, 603 S.E.2d 147 (N.C. Ct. App. 2004) (a compulsive gambler was hired and embezzled hundreds of thousands of dollars from a company). A negligent hiring claim arises when an employer knew or should have known of an employee’s propensity to do harm when making the decision to hire him or her. Perhaps it is only a matter of time before social-networking screening is so ubiquitous that it is considered a necessity for employers to include in their applicant screening process. If and when that happens, the failure of a company to properly vet a candidate online before hiring could expose it to a negligent hiring claim because the firm should have known of a job candidate’s propensity to do harm when a quick search of his or her Facebook account would have revealed it.
Disparate Impact of Online Recruitment
Another potential impact for employers is when a firm has a policy to accept applications only online or post jobs only online, a topic discussed during the March 12, 2014, Equal Employment Opportunity Commission (EEOC) public meeting on the subject. An applicant for a position as a park ranger filed a claim with the EEOC alleging that she was not hired as a park ranger due to age and sex discrimination, and that the organization’s recruitment exclusively through Facebook discriminated against older workers who do not use such social-networking sites. Reese v. Dep’t of Interior,EEOCAppeal No. 0120122339 (Nov. 15, 2012).The EEOC found that the Park Service did not exclusively recruit online and did not discriminate based on age or sex in that case. To avoid this issue, employers should accept walk-in and paper applications as well to avoid a disparate-impact claim by an older person or minority candidate who can show that the employer’s online-only policy has a disparate impact on the candidate, who is of a class not likely to use social-networking sites. Obviously, if the position is for a social-media content creator, this advice would not apply. The Pew Research Center’s Internet Project, July 18–September 30, 2013, shows that only one-quarter of seniors (age 65 and older) use social networks. A potential candidate whose disability prevents him or her from being able to use an online application process should also be given the opportunity to apply onsite with help, as needed.
Finally, a discriminatory-impact claim may be made based on the demographics an employer may use when targeting its ads. For instance, an employer who targets white males aged 25–35 in the tech industry within a certain ZIP code is setting itself up for potential litigation. However, in some cases, even designating the targeted ad by ZIP code could be problematic. That is, when a minority population lives in a ZIP code and that area is excluded from the targeted search, a potential candidate (or class of candidates) could claim that the employer’s ad perimeters had a discriminatory intent or result.
Policies and Procedures
Employers who wish to continue to review online profiles before hiring should separate the reviewer from the decision maker. The reviewer must screen the information for information involving a candidate’s membership in a protected class and relay to the decision maker only publicly available information that may be legally used by the decision maker. Companies may also use third parties to go online to vet job candidates. These third parties must comply with the Stored Communications Act and the Fair Credit Reporting Act. The process should also be consistent—whom a firm screens, the sites it reviews, when in the application process—should be consistent. An employer who completes this process for only candidates with foreign-sounding names, for instance, or names commonly associated with a particular race or religion, is acting in a discriminatory manner and is setting itself up for litigation. Although some firms choose not to vet job candidates online at all to avoid these potential legal pitfalls, the reality is that more and more employers will continue to recruit and vet candidates online.
The pitfalls of social-networking sites do not exist solely for employers. Each of us is smart to be careful about what can be viewed about us online. For instance, making harassing, racist, or sexist comments can hurt any job seeker’s chances of getting hired. Inappropriate photos posted publicly online will also haunt most job candidates, even when privacy settings are controlled.
However, when a job candidate believes that he or she was screened out due to membership in a protected class, the individual should contact an employment lawyer to discuss his or her rights and contact the appropriate civil rights office. The EEOC or its state equivalent can investigate the job candidate’s claims and determine whether the employee has a likely actionable claim.
Keywords: litigation, employment law, labor relations, social media, employment application, recruiting
Jeana Goosmann is the chief executive officer and managing attorney and Emilee Gehling is a shareholder at Goosmann Law Firm in Sioux City, Iowa.